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[2020] ZALMPPHC 36
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Malebye Business Enterprise CC and Another v Bela-Bela Business Enterprise CC and Others (4134/2018) [2020] ZALMPPHC 36 (18 June 2020)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
Case No: 4134/2018
In
the matter between
MALEBYE BUSINESS ENTERPRISE
CC
FIRST APPLICANT
DAY BREAK PROPRTY 104 (PTY)
LTD
SECOND APPLICANT
AND
BELA-BELA
LOCAL MUNICIPALITY
FIRST RESPONDENT
THE
MINISTER OF ENERGY
SECOND RESPONDENT
CONTROLLER
OF PETROLEUM
PRODUCTS,
LIMPOPO PROVINCE
THIRD RESPONDENT
MEC
FOR ECONOMIC DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL
AFFAIRS,
LIMPOPO PROVINCE
FOURTH RESPONDENT
NTK
LIMPOPO AGRIC LIMITED
FIFTH RESPONDENT
VKB
FUELS (PTY) LTD
SIX RESPONDENT
TOTAL
PETROLEUM (PTY)LTD
SEVENTH RESPONDENT
THE
FIRST BUILDING CONTROL
OFFICER
OF THE BELA BELA
LOCAL
MUNICIPALITY
EIGHT RESPONDENT
THE
SECOND BUILDING CONTROL
OFFICER
OF THE BELABELA
LOCAL
MUNICIPALITY
NINTH RESPONDENT
JUDGMENT
KGANYAGO J.
[1]
The
applicants have brought an application calling upon the first, eighth
and ninth
respondents
to show cause why
the
decision of
the
first, eighth, and ninth respondents submitted to them for approval
by the fifth, alternatively the fifth and sixth respondents
in terms
of the National Building Regulations and Standard Act for the
erection of
buildings
on
the
property owned
by
the
fifth
respondent to
conduct the
business of
a
retailer
of petroleum products on
the
said
property
should not be reviewed and set aside.
[2]
On
receipt of the application, the fifth and sixth respondents
(respondents) filed
an
irregular step
notice in
terms of
Rule
30(2)
(b) of the
Uniform Rules of Court (the Rules)
listing six complaints. The first complaint was that the decision to
be reviewed was not identified,
the second complainant was that the
applicants were seeking an extension of the time period imposed by
the Promotion of Administrative
Justice Act 3 of 2000 ("PAJA"),
but have failed to set out the grounds upon which such application
was sought, the third
complaint was that applicants were seeking to
review an administrative action in terms of PAJA, but have failed to
establish the
two grounds in terms of which a review of that nature
may be brought, the fourth complainant that the applicant was seeking
a staggered
disposal of overlapping issues, the fifth complaint was
that
the
notice
of
motion did
not
state
the
date
of
the
set
down
should no notice of intention to oppose the application be given, and
the sixth complaint was that paragraph 10.11 appears
at the bottom of
the founding affidavit on page 51, paragraph 10.12 appears at the top
of page 52 of the founding affidavit and
the remainder of paragraph
10.12 does not appear in the founding affidavit.
[3]
The
applicants filed an amended notice of motion and supplementary
affidavit in
trying
to address the issues raised by
the
respondents. However, the respondents felt that the applicants'
supplementary affidavit and amended notice of motion did not
address
four of their six complaints. The respondents filed
a further irregular step
notice
still
raising
the
same
complaints as
they appear in the first notice except
for the fourth and fifth complaint which appeared in the original
notice.
[4]
The
applicants did not remove the causes of complaints raised by the
respondents which resulted in the adjudication of the present
interlocutory application. Regarding the first complaint, the
respondents argued that the applicants have failed identify a
decision
submitted to the respondents in their notice of motion and
therefore what they are seeking is nonsensical, and cannot be
executed
or enforced. With regard to the second complaint, the
respondents argued
that
the
applicants brought
the
application after the expiry of the 180
days, but have failed to disclose the reasons for their failure to
bring their application
on time as required by PAJA. With regard to
the third complaint, the respondents have argued that the applicants
have failed to
establish the jurisdictional requirements for the
relief they are seeking despite having filed a supplementary
affidavit. With
regard to the sixth complaint, the respondents argued
that the applicants filed their heads of arguments prematurely before
pleadings
have closed and enrolled for adjudication.
[5]
Regarding
the first complaint, the applicants argued that on plain reading of
the amended prayer 1 of the amended notice of motion
as
amplified and
supplemented by
prayer 4, it
is
abundantly clear to which decision is
referred to. Regarding the second complaint, the applicants argued
that paragraph 4.2 of the
amended notice of motion is conditional
upon the decision of the first, eighth and
ninth respondents been taken more than
180 days before the date of the notice. Regarding the third complaint
the applicants argued
that it relates to substance and will be argued
on merits. Regarding the fourth complaint, the applicants argued that
the filing
of heads of arguments is
not
a
procedural issue which is
governed by
the
Rules
of Court.
[6]
It
is trite that Rule 30(1) procedure was intended as a procedure
whereby a hindrance to the future conduct of the litigation, whether
created by non- observance of what the rules of court intended or
otherwise, is removed. The irregularity must be a step which
at
one stage
or
another
affects
the
development of
the
suit
as
a
whole.
Rule
30(1) applications should succeed only if there is prejudice related
to proceedings with the litigation.
(See
Cyril Smiedt (PTY) Ltd v Lourens
1966 (1) SA 150
(O); SA
Metropolitan Lewensversekerings Maatskappy Bpk v Louw NO 1981(4) SA
329 (0) and De Klerk v De Klerk
1986 (4) SA 424
(W)).
[7]
The original prayer
1 in Part A of the applicant's notice of motion read as
follows:
"Take notice that the first,
eighth and ninth respondents are hereby called upon to show cause why
the decision of the first,
eighth and ninth respondents submitted to
them for approval by the fifth, alternatively the sixth,
alternatively the fifth and
sixth respondents in terms of the
National Building Regulations and Building Standards Act, 103 ot'1977
for the erection of Buildings
on the property known as portion 22 (a
portion of Portion 14) of the farm Vaalboschbult 66, Registration
Division J.R, Limpopo
Province, 1,7295 hectares in extent held and
owned by the fifth respondent in terms of title deed No T157720/04 to
conduct the
business of a retailer of petroleum products on the said
property should not be reviewed and set aside."
[8]
In the amended
notice of motion prayer 1 was not amended and remained unchanged.
Prayer 4.1 was amended to read as follows:
"Take
further
notice
that
the
applicants
will
seek
the
following
orders
under
Part
A
of
the
notice
of
motion.
4.1 That the decision of the
first, eighth and ninth respondents submitted to them in respect of
portion 22 (a portion of Portion
14) of the farm Vaalboschbult 66,
Registration Division J.R, Limpopo Province, 1, 7295 hectares in
extent held and owned by the
fifth respondent in terms of the Title
Deed NO T157720/04 in terms of the National Building Regulations and
Building Standard Act
103 of 1977 be reviewed and set
aside."
[9]
On
reading prayer 1 and 4.1 together it is clear what decision the
applicants are seeking to be reviewed and set aside. They are
reviewing the decision to approve the building plans submitted in
respect of Portion 22. The respondents will know whether those
building plans
exist
or not, whether they were submitted for
approval or not and
also whether they were indeed approved or not. The decision has
therefore been identified in the applicants
notice
of motion on reading
prayer 1 in conjunction with prayer 4.1. In my view, there is no
merit on the complaint raised by the respondents
on this issue.
[10]
With regard to the respondent's second complaint, the applicants have
drawn their application
without having all the necessary documents
with them. The applicant's failure to have all the documents was
created
by
the
respondents who
failed
to
furnish
the applicants with
the necessary documents despite being requested to do so. The
applicants were forced to approach the court in
order to compel the
respondents to furnish them with the necessary documents. By
formulating the prayer in that fashion they were
merely casting their
net wide open as they were not sure as when was the actual date when
the decision to approve was taken. The
respondents have also not
shown the prejudice that they will suffer as a result of the manner
in which the applicants were seeking
an extension of the time period
imposed by PAJA. Further this issue goes to the substance of their
application and not the form.
In my view, there is no merits on this
complaint by the respondents.
[11]
The
third
complaint by
the
respondents relates
to
substance and
not form. It therefore does not have
merits. With regard to the filing of heads of arguments before
pleadings were closed,
the
respondents have failed to show what prejudice they have suffered or
prejudice it might cause relating to the
proceedings.
[12]
In all the complaints that the
respondents have raised, they have failed to establish any
irregularity or prejudice. In my view,
the respondent's complaints
have no merit and their application stand to fail.
[13]
In the result the following order is
made:
13.1 The respondents' application
is dismissed with costs on party and party
scale.
MF KGANYANGO J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
FOR
THE
APPLICANT
: MR OBERHOLZER
INSTRUCTED
BY
: ENSLIN & FOURIE ATTORNEYS
FOR
THE FIFTH AND SIXTH
RESPONDENT
: BRESLER
INSTRUCTED
BY
: GERRIT COETZEE INC
DATE
OF ARGUMENT
: 11
TH
MAY 2020
DATE
OF JUDGMENT
: 18
TH
JUNE 2020